Mr. LEAHY. Mr. President, we took an important step in the last Congress
to preserve law enforcement's wiretapping tool and increase privacy protection
for our telephone and computer communications by passing the Communications
Assistance for Law Enforcement Act. This law expanded privacy protection to
cordless telephones, restricted the ability of law enforcement to obtain transactional
information from e- mail messages, and improved the privacy of mobile phones
by expanding criminal penalties for stealing the service from legitimate users.

This new law also imposed new requirements to ensure that court orders for
electronic surveillance can be carried out, rather than stymied by new technologies
used on our telephone networks.

Significantly, these new requirements for our Nation's telephone networks
were accompanied by guidelines designed to bring public oversight and accountability
to the process of implementing them. For the first time, decisions on how
new and existing telecommunications systems will remain accessible to government
surveillance must be made in the sunshine of public scrutiny.

Thus, the new law requires for the first time that law enforcement's demands
regarding the number of wiretap, pen register, and other surveillance orders
that telephone companies must be able to service simultaneously, are published
in the Federal Register and scrutinized in a public procedure.

In compliance with this new requirement, the FBI published in the Federal
Register on October 16, 1995, a proposed notice setting forth its capacity
demands. According to the proposed notice, these capacity demands were predicated
upon a historical baseline of electronic surveillance activity and an analysis
of that activity. Yet, the Federal Register notice did not include publication
of this underlying information.

Shortly after the notice was issued, I wrote to the FBI Director requesting
copies of this information, and urging him to release the information to the
public to ensure the fullest dissemination of the information.

I am aware that the comments filed by the deadline on January 16, 1996, in
response to the proposed notice on behalf of civil liberties groups, telephone
companies, and cellular companies have criticized the proposed notice for
failing to disclose the supporting data for the capacity demands. As one set
of comments filed by the Center for Democracy and Technology and the Center
for National Security Studies noted, ``it is impossible to say whether or
not the capacity requirements proposed in the notice are justified'' without
the supporting data.

The FBI has now provided me with a 13-page report explaining how they collected
information about past law enforcement surveillance activity from Federal
and State court offices, State attorneys general offices, and over a thousand
telecommunications carriers. This report also describes the method the FBI
used to analyze this information and figure out how much wiretap capacity
law enforcement would need for the foreseeable future and up to 10 years from
now in three broad categories of geographic areas.

I fully appreciate the amount of hard work that went into collecting this
critical data and doing the analysis. Indeed, this is the first time that
law enforcement has ever been required to estimate its future surveillance
activity and the demands that will be made on telecommunications carriers.
This is also the first time that this information has ever been required to
be made public.

I am pleased to make this report available for public dissemination. It does
not identify which geographic areas fall into which of the three different
categories with differing capacity requirements. Thus, it does not tell us
whether Vermont is in category I, where the greatest level of interception
activity has occurred and is likely to occur in the future, or in category
III, where the number of law enforcement wiretaps have been low or nonexistent.
Telecommunications carriers doing business in Vermont and Vermonters will
want to know which category we fall into.

The FBI has assured me that they are in the process of preparing two additional
documents that will explain the proposed capacity notice in greater depth.
I look forward to examining those two additional documents upon their release
by the FBI.

The public process set up in the new law is working. I commend the FBI Director
for his efforts to fulfill the public accountability provisions of the law
by making available this report and future reports on the capacity requirements.

Since these reports were not available prior to the deadline for comments
on the original proposed notice, however, I would urge the FBI to consider
issuing a revised or supplemental proposed notice to give interested parties
an opportunity to comment on the proposed capacity demands with the benefit
of this new information.

Mr. President, I ask unanimous consent that the report be printed in the
Record.

There being no objection, the report was ordered to be printed in the Record,
as follows:

Information Concerning Implementation of the Communications Assistance
for Law Enforcement Act [CALEA]

Background

CALEA was enacted to preserve law enforcement's ability, pursuant to court
order or other lawful authorization, to access communications (content) and
associated call- identifying information in an ever-changing telecommunications
environment. Because many interceptions \1\ in the future will be initiated
through equipment controlled by carriers, CALEA obligates the Attorney General
to provide telecommunications carriers with information they will need (a)
to adequately size and design their networks to accommodate the maximum number
of simultaneous interceptions that law enforcement potentially might conduct
after October 25, 1998, and (b) to be capable of accommodating the actual
number of simultaneous interceptions law enforcement potentially might conduct
as of October 25, 1998. The CALEA specifically refers to two levels of capacity,
maximum and actual.

Footnotes at end of article.

CALEA requires the Attorney General to provide a notice of the maximum capacity
required to accommodate all of the communication interceptions, pen registers,
and trap trace devices that the Attorney General estimates that government
agencies authorized to conduct electronic surveillance may conduct and use
simultaneously after the date that is 4 years after enactment (i.e., after
October 25, 1998). The Attorney General must also provide a notice of the
actual number of communication interceptions, pen registers, and trap trace
devices, representing a portion of the maximum capacity, that the Attorney
General estimates that government agencies authorized to conduct electronic
surveillance may conduct and use simultaneously as of October 1998.\2\

Maximum Capacity

Unlike actual capacity, CALEA indicates that the maximum capacity applies
to a time, not specified, after the date that is 4 years after the date of
CALEA's enactment. The maximum capacity has been interpreted as chiefly a
design requirement for telecommunications carriers that will be utilized to
size and define an upper bound capacity ceiling for the mid-term to intermediate
future (i.e., 1998-2004), as discussed in more detail below. This ceiling
is intended to provide carriers with certainty and stability, as well as with
a framework for cost effectively designing and engineering future capacity
requirements into their networks.

As CALEA makes clear, the maximum capacity is in no way synonymous with actual
capacity (i.e., the interception capacity that law enforcement may actually
use as of October 25, 1998). Rather, maximum capacity is viewed as relating
to a longer term, more enduring design requirement that would serve as a defined
technological bound to interception activity, but yet would provide room for
expeditiously accommodating certain future interception-related ``worst case
scenarios.'' For example, it would be impossible for law enforcement to predict
unusual, anomalous, but nonetheless very serious or violent events such as
those associated with certain acts of terrorism or extreme instances of drug-trafficking
or organized crime activity. Maximum capacity provides a safety-net that would
enable telecommunications carriers to expeditiously respond to serious, unpredictable,
emergencies that require very unusual levels of interception capacity.

Actual Capacity

Under CALEA, estimates of actual capacity are to apply to all simultaneous
interception activity that may be conducted by the date that is 4 years after
the date of enactment of CALEA. CALEA makes clear that actual capacity represents
only a portion of the maximum capacity. Actual capacity thus pertains to the
amount of interception activity that potentially may be needed when many of
CALEA's requirements are scheduled to take effect in October 1998. Consequently,
when viewing the maximum and actual capacity levels set forth in the Initial
Capacity Notice, realistically only the actual capacity estimates should be
construed as in any way reflecting the amount of simultaneous interception
activity that potentially may be conducted by law enforcement in any geographic
area as of October 1998.

Methodology Overview

The CALEA mandate which obligates the Attorney General to estimate future
capacity marks the first time (a) that information has been required to be
provided to carriers in order for them to properly design and size future
networks with reference to interception activity; and (b) that the entire
law enforcement community has been required to project its collective potential
future interception needs, thereby in effect placing possible technological
limitations on its lawful authority to conduct electronic surveillance. This
circumstance, as viewed by the law enforcement community, obviously generates
great and legitimate concern, because historically telephone technology placed
no constraints on law enforcement's court ordered electronic surveillance
authority. If not implemented with care, CALEA could have the unintended effect
of potentially placing restrictions on the lawful use of electronic surveillance
authority. Thus, if law enforcement errs by underscoping its potential, legitimate,
and lawful interception needs, effective law enforcement will be hampered
and, more importantly, the public safety will be jeopardized.

The FBI, which is implementing many of the responsibilities conferred upon
the Attorney General by CALEA, was required to issue the capacity notice.
In order to meet this obligation, we proceeded by employing a rigorous, comprehensive
methodology to acquire critically needed information and to establish analytic
tools for determining the simultaneous interception activity of the recent
past and for estimating future maximum and actual capacity.

The methodology used was intended to take into consideration the concerns
of the parties principally affected by CALEA. On the one hand, CALEA provides
law enforcement with an opportunity and means to ensure that its future electronic
surveillance needs can be met. On the other hand, CALEA presents an opportunity
and means for telecommunications carriers to understand the nature and extent
of their obligations to accommodate law enforcement's electronic surveillance
needs and to do so in a way that will not be unduly burdensome or excessive.
Law enforcement's approach and perspective regarding its electronic surveillance
needs relate to its mission to combat serious crime, acts of terrorism, and
acts of violence. Traditionally, this mission has been tied to law enforcement
agencies' geographically-based jurisdiction and associated jurisdictional
legal authority. Telecommunications carriers' approach and perspective regarding
law enforcement's electronic surveillance needs, however, chiefly relate to
the effect such needs may have on particular components within their systems
that are used to serve subscribers within a given market (i.e., switches and
other network components).

As a goal, law enforcement sought to harmonize the different approaches and
perspectives of these parties in its methodology. The methodology sought to
produce a result that acknowledged and factored in the interrelationship between
the geographic, jurisdictional contours of law enforcement interception activity
and the geographic service areas covered by the carrier switching facilities
that will be likely used to provide interception access. By identifying key
pieces of data associated with these approaches and perspectives, we were
able to formulate and then analyze past interception activity in terms that
enabled us to establish one of the key components (one pertaining to past
peak levels of interception activity in localities of various sizes) in an
equation leading to an estimate of future interception capacity. The other
key component (one pertaining to projected growth) was derived from a statistical
model that included a number of variables reasonably believed to predict potential
future capacity bounds and potential future interception needs. Once the projections
were made to estimate future capacity needs, the results were reviewed and
adjusted to ensure reasonableness before publishing the results in the Initial
Capacity Notice.

By presenting capacity levels in the Initial Capacity Notice with reference
to engineered capacity (discussed below), the FBI intended to express interception
capacity in an understandable fashion as a percentage of a carrier's switch
or other network component capacity. This approach was intended to enable
carriers to tailor their technological responses to law enforcement's potential
interception needs within specific types of geographic areas. The following
discussion highlights the methodological steps used to arrive at the actual
and maximum capacity figures published in the Initial Capacity Notice.

Part One: Deriving Key Data from Past Interception Activity

As a first step, we sought to establish a baseline of past simultaneous interception
activity. Information concerning the actual number of all types of simultaneous
interceptions occurring throughout the United States in the recent past was
collected. Such information, needed to establish the baseline, had never before
been collected and did not exist in a single repository. Amassing this detailed
and extremely sensitive information required an unprecedented and time- consuming
effort on the part of law enforcement. It involved identifying sources from
which accurate information could be retrieved in an efficient and effective
manner. Specifically, we sought to identify sources that could provide the
exact number of all types of interceptions (to include call content, pen register,
and trap and trace) performed by all federal, State, and local law enforcement
agencies, in terms of the actual number of telephone lines \3\ intercepted
at each locality.

To obtain specific line-related information regarding past simultaneous electronic
surveillance activity, records of interception activity were acquired from
telecommunications carriers, law enforcement officials, and most importantly,
from the Federal and State Clerks of Court's offices--the official repository
for all interceptions conducted simultaneously between January 1, 1993 and
March 1, 1995, for all geographic locations. Specifically, highly sensitive
interception information pertaining to each interception start/end dates,
and to area code and exchange was collected. The period January 1, 1993 to
March 1, 1995 was chosen in order to obtain recent interception information
that was reasonably retrievable given the time constraint of one year imposed
by the CALEA with regard to publishing a capacity notice.

Approximately 1500 telecommunications carriers (those serving the majority
of subscribers in the U.S., and representing the largest of the wireline and
cellular telephone companies (as of March 1995)) were requested to provide
information that would identify where and how many interceptions had occurred
within their networks during the period of study. Acquisition and examination
of sensitive electronic surveillance records maintained pursuant to statute
under seal with the Clerks of Court offices was pursued through two separate
efforts. All Federal court order information was collected pursuant to special
court orders directing the unsealing of interception court orders for the
limited purpose of enabling the Attorney General/FBI to comply with the capacity
notice obligation. State and local law enforcement information was obtained
through the State Attorneys General (AG) offices. Each State AG was requested
to coordinate the collection of interception information within the AG's respective
State.

By reviewing the data collected, the number of simultaneous interceptions
that had occurred within switching facilities was identified throughout the
country during the study period. One of the key pieces of relevant information
was the highest number of interceptions that had ever occurred simultaneously
within any telecommunications carrier's switch.\5\

For the years studied, the highest number of simultaneous interceptions occurring
within any one switch in the United States was 220; that is, 220 pen register,
trap and trace and/or call content interceptions were active at the same time
within a particular switch. Further analysis revealed that the 220 interception
number far exceeded the number of simultaneous interceptions conducted in
other high activity switches and was due to a single unusual occurrence. The
switch that had the second highest level of simultaneous activity supported
120 pen register, trap and trace and/or call content interceptions.

The distribution of baseline simultaneous interception activity by switch
was varied. Among switches which had supported interceptions during the period
studied, there was a broad and varied distribution of simultaneous interceptions
ranging from 1 to 120. Switches with the greatest levels of interception activity
frequently existed in urban areas. Switches with lower levels of interception
activity existed across a variety of geographic areas, encompassing urban,
suburban, and rural areas.

The review of the baseline of interception activity yielded certain key data
on simultaneous interceptions for specific switching systems, but law enforcement
usually approaches crime within the context of geographic or jurisdictional
areas. The next analysis challenge was to associate the baseline simultaneous
interception data on specific switches with law enforcement's need to express
requirements relative to geographic areas. To do this, law enforcement sought
to identify geographic boundaries that could provide common reference points
between law enforcement and telecommunications carriers.

A number of geographic boundaries which define service areas of telecommunications
carriers were considered (e.g., State lines, local access transport areas
(LATA), metropolitan statistical areas (MSA), rural service areas (RSA), and
major and basic trading areas (MTA, BTA)). However, in each case, these boundaries
did not provide a good match with defined law enforcement areas. Law enforcement
jurisdictional legal authority in a great number of cases is defined by county
boundaries (i.e., for local law enforcement agencies). County boundaries rarely
change and are not disputable. In most cases, a group of counties are encompassed
by the boundaries that define a telecommunications carrier's service area.
Consequently, county boundaries were used as the common reference tool in
formulating an analysis for future capacity.

From the baseline of interception activity, interception data was aggregated
for a group of specific switches by county. Switches were assigned to counties
based on their geographic location. The data can be divided into their different
levels (or categories) or interception activity: high, moderate, and low.

As part of the consultative process with the telecommunications carriers,
law enforcement understood that one of the primary carrier concerns with regard
to capacity was that each switch in a carrier's network should not be held
to the same requirement for capacity levels. The carriers had indicated generally
that although CALEA requires the Attorney General to estimate future capacity
sizings and to estimate future potential interception activity that may occur
in their network, every attempt should be made by law enforcement to express
its needs in accordance with the variability of interceptions that had occurred
in the past. Recognizing this, we chose to define law enforcement's potential
future interception needs using categories and not just one absolute number
that would apply without regard to the often varied nature of interceptions
in a carrier's geographic service area.

As a result of considering the relative relationships between law enforcement
and telecommunications carriers geographic areas, it was determined that three
separate categories for stating capacity requirements should be created. The
use of categories permitted capacity requirements to be stated in a way that
reasonably reflected, and was responsive to, law enforcement interception
needs without unduly burdening all carriers with the same level of capacity
or requiring a particular carrier to provide the same capacity level everywhere
in its network. As alluded to in the Initial Capacity Notice, Category I represents
a small number of geographic areas where the greatest level of interception
activity typically has occurred and is likely to occur. Category II also represents
a relatively small number of geographic areas, which consist of some urban
and suburban areas. Category III represents the vast majority of areas where
electronic surveillance activity has historically been low or nonexistent,
principally in rural and many suburban areas.

With regard to Category III, as the nation moves toward the future, law enforcement
must have the capability to conduct a minimum level of electronic surveillance
in any locality, regardless of previous levels of criminal activity or prior
levels of electronic surveillance activity. Terrorism, drug trafficking, and
violent crimes are constant and unpredictable threats to the public in all
localities, as evidenced by the Oklahoma City bombing in April 1995. Consequently,
unlike Categories I and II, which are defined principally with reference to
past levels of electronic surveillance activity, Category III constitutes
a minimum interception capacity for any location in which law enforcement
may need an interception capability in order to protect the public and effectively
enforce the law.

Once the geographic areas could be generally (but only tentatively) associated
with each category, the historic baseline of interception activity for these
areas could be used as a way of defining the distinct levels of past electronic
surveillance activity. For the Category I level, as noted above, the highest
number of simultaneous interceptions from a switch was 120. Our analysis also
determined that within the Category II level the highest number of simultaneous
interceptions from a switch was 42.

The Use of Percentages and Engineered Capacity

Law enforcement considered it appropriate and prudent to express capacity
requirements in the Initial Capacity Notice in terms of a percentage rather
than as a fixed number for several reasons. First, percentages are very appropriate,
if not essential, with regard to new service providers, new switches, new
services, and new technologies. If absolute numbers were set forth, the introduction
of new basic service, as well as more advanced services and features, could
be impeded--a prospect that is unacceptable to either the Congress, law enforcement,
or the telecommunications industry. Second, percentages allow capacity requirements
to adjust slightly to a changing subscriber base as it increases or decreases
over time.

To enable carriers to apply the percentages to the affected systems in their
networks properly, capacity level percentages were tied to engineered capacity.
Engineered capacity was referred to in the Initial Capacity Notice as the
maximum number of subscribers that can be served by a carrier's equipment,
facilities, or service. In the main, a carrier's switching facility was the
key network component associated with this foregoing terminology. With regard
to the highest level of simultaneous interception activity in the baseline
data with regard to Category I (120), the switch associated with that interception
activity was one that typically served an average of 35,000 subscribers. This
led to the historical electronic surveillance activity being expressed as
a percentage of engineered capacity of 0.34. This percentage was derived by
dividing the 120 simultaneous interceptions by 35,000 subscribers. With regard
to the highest level of simultaneous interception activity noted in the baseline
data occurring with regard to Category II (42), the switch associated with
that interception activity was one that typically served an average of 27,000
subscribers. This led to the historical electronic surveillance activity being
expressed as a percentage of engineered capacity of 0.16. This percentage
was derived by dividing the 42 simultaneous interceptions by 27,000 subscribers.

As discussed above, the interception activity which was now being associated
with Category III reflected little or no activity in the past. Hence the capacity
level associated with Category III was dervived in a different manner. To
establish a percentage regarding areas where there had been little or no past
interception activity, for purposes of future analyses, we examined the distribution
of historical interception activity for those switches with very little or
not interception activity. The majority of these switches had electronic surveillance
activity of less than 0.1 of the capacity associated with such switches. This
led law enforcement to assign 0.1 as the level of historical electronic surveillance
activity for Category III, expressed as a percentage of engineered capacity.
This figure, therefore, was selected essentially to ensure a bare minimum
capacity to support law enforcement interceptions.

Part Two: Estimating and Using Growth Rates to Project Future Capacity
and Interception Activity

CALEA's mandate that law enforcement identify capacity requirements marked
the first time future carrier capacity sizings and future potential interception
activity were required to be estimated. Although CALEA provided no specific
date as an outer bound for the projection for maximum capacity, the year 2004
was used for its projection of maximum capacity. We used the year 2004 because
it reflects a ten year period from the last date for which historical data
was available (1994). A ten year period is commonly used as a period of time
within which to analyze and prepare projections. An analysis of a period of
this length also provides the affected telecommunications carriers with the
information that would produce the greatest level of stability for the mid-term
to intermediate future. By comparison, CALEA specifies October 1998 as the
date for projecting potential future interception activity (actual capacity).

Four steps were followed to determine the maximum and actual capacity percentages
which were published in the Initial Capacity Notice. These four steps are
as follows:

Projections regarding future design capacity that may be required to accommodate
unusual future interception activity, as well as the amount of potential future
interception activity itself (call content interceptions, as well as the much
more prevalent pen register and trap and trace interceptions), in terms of
the number of lines that possibly could be implicated, are not readily and
easily derived. For example, when one considers just one of the relevant groups
of information (past Title III court order authorizations) it becomes apparent
that a simple straight line trend does not exist. In reviewing the number
of such authorizations on a yearly basis over the last 15 years (1980-1994),
there is over a 100 increase (from 566 to 1154). However, the year to year
increases are anything but consistent, with variations from -12 to +19 occurring
by way of yearly changes.

Although it may be impossible to discern precisely why increases (or decreases)
occur on a yearly basis with regard to all of the types of interception activity,
a number of factors were considered (discussed further below) which over time
presumably would logically influence such activity. In brief, these factors
relate to population, telecommunications technology, law enforcement resources,
and relevant crime statistics.

Notwithstanding the difficulty in making long range estimations about a design
capacity level capable of accommodating reasonable growth over the intermediate
future (1998-2004) and which, more importantly, could also address totally
unexpected worst case scenarios (maximum capacity) and future potential, interception
activity (actual capacity), in terms of the number of lines implicated, we
were obligated to respond to CALEA's mandate to produce capacity estimates.

Law enforcement determined that it was imperative to construct and utilize
an analytical statistical model in order to address the variability related
to relevant historical data that could be associated with interception activity.
The model selected was a widely-used model referred to as a multi-variable
linear regression statistical model. With such a model, future trends central
to predicting capacity could be projected.

In broad terms, this model sought to project potential future behavior based
upon an analysis of the relationships between two data groups for which historical
data was available over the last 15 years. One data group was the number of
criminal Title III court orders authorized between 1980 and 1994. The other
data group was composed of a suite of relevant factors (multi-variables) related
to population, telecommunications technology, law enforcement resources, and
relevant crime statistics. Once trend relationships were noted between the
second group and the first, an equation was produced from which projections
as to the future level of the first group (Title III court orders) could be
established based on growth projections of the second group. The projection
for the criminal Title III court order authorizations was an important analytic
first step in projecting the design capacity and future potential interception
activity in terms of the number of lines (interceptions) that may be involved.

The first data group consisted of the number of Title III court order authorizations
recorded per year in the Wiretap Report, compiled each year by the Administrative
Office of the United States Courts. In an attempt to establish a trend, we
examined the criminal Title III court order authorizations granted per year
over the last 15 years (1980-1994). As noted above, however, an examination
of this data showed significant yearly fluctuations thereby precluding a simple,
straight line trend for approximating future authorizations. Also, as noted
above, the Wiretap Report only documents the number of criminal Title III
court orders; it does not specify the actual number of call content interceptions
associated with each order, nor does it address at all the vastly greater
number of interceptions associated with pen registers and traps and traces.
Nonetheless, because it was the only longstanding electronic surveillance
data source in existence, it was concluded that it necessarily should play
an important role in the model because it did document past, relevant interception-related
information from which projections of design capacity and future potential
interception activity could later be made.

The second data group consisted of factors or multi- variables deemed relevant
with regard to the conduct of all types of interception activity. These factors,
as noted above, were population, telecommunications technology, law enforcement
resources, and relevant crime statistics. Historical and projected future
data on population totals was collected from the United States Census Bureau.
Historical and projected future data for wireline telecommunications subscribers
was collected from the Federal Communications Commission. Historical data
on wireless subscribers was acquired from reviewing publications issued by
the Cellular Telecommunications Industry Association (CTIA). Projected future
data for wireless subscribers was derived based upon an analysis of information
found in trade journals concerning future projections of the number of wireless
subscribers and attributed to the CTIA, the Personal Communications Industry
Association, and other industry sources. Historical data on total number of
law enforcement officers and reported incidents of violent crime was collected
from the FBI's Uniform Crime Report. Projected future data on the total number
of law enforcement officers and crime was derived based on an assumed linear
growth rate of the historical data. For each of the above factors, projections
for future data were made out to the year 2004.

Step 2: Computing Growth Rates

Using the projected future data produced by the equation, the statistics
indicated a growth rate of 130 in the first group between 1994 and 2004, a
factor which was included in the subsequent analysis used to project maximum
(design) capacity. By comparison, a projection for potential future interception
activity (actual capacity) was arrived at by noting the statistics in the
first group, that had applied the same trends projected by the statistical
model, suggesting a growth rate between 1994 and 1998 of 54 percent. As noted
above, when one reviews the number of criminal Title III court order authorizations
on a yearly basis during the last 15 years (1980-1994), there is more than
a 100 increase (from 566 to 1154). Also, when one reviews available official
reports regarding the vastly more prevalent pen register and trap and trace
court orders granted during the last 8 years, one observes an increase of
219. Finally, for the same period, with regard to such pen register and trap
and trace court orders ``the number of persons whose telephone facilities
were affected'' increased by 345.\6\ Consequently, the model's results are
considered to be reasonable and consistent with past interception-related
activity and appropriate for use as part of the analysis.

As noted above, the historical interception activity expressed as a percentage
of engineered capacity for Category I was 0.34 (120 simultaneous interceptions
out of a switch serving a possible 35,000 subscribers); and the historical
interception activity expressed as a percentage of engineered capacity for
Category II was 0.16 (42 simultaneous interceptions out of a switch serving
a possible 27,000 subscribers). For Category III, the minimum level of interception
activity expressed as a percentage of engineered capacity was 0.1. The computed
growth rates of 130 and 54 were converted into growth multipliers of 2.3 and
1.54, for maximum and actual capacity, respectively. By multiplying the historical
interception activity figures for Category I, Category II, and Category III
by the growth multipliers, we calculated numbers for a ``raw'' maximum and
actual capacity, as illustrated in the table below.

In projecting future design capacity (maximum capacity) and capacity for
potential future interception activity (actual capacity) that may be needed
by all law enforcement agencies, for publication in the Federal Register,
the FBI made downward adjustments to the numbers that were set forth with
regard to the raw actual capacity in both Categories I and III. A substantial
downward adjustment was made in Category III. These downward adjustments were
made because law environment recognized that a majority of the affected telecommunications
carriers fall in Category III, and that our historical interception activity
was minimal in this category. Therefore, we chose to lessen the burden on
the telecommunications industry and minimize the costs of installing solutions,
consistent with assuring an essential minimum level of interception capacity.

The numbers set forth for the raw maximum capacity in Categories I, II, and
III were adjusted upward for a number of reasons. First, as noted above, the
interception activity associated with pen registers and traps and traces by
far represents the most frequently used type of interception. The growth rate
in the number of pen register and trap and trace court orders far exceeds
that projected in the statistical analysis. As noted above, the percentage
of increase in such court orders during the past 8 years was 219 and the number
of persons whose telephone facilities were affected increased 345.

Second, although the peak number of simultaneous interceptions identified
in the baseline data was 220, we elected not to use it in the statistical
analysis because it was deemed to be an anomaly. However, this level of interception
activity, although anomalous, is indicative of the type of worst-case scenarios
that law enforcement should not easily ignore or completely discount. Hence
some provision needs to be made for such situations.

Third, although every effort was made to capture as accurately as possible
the actual levels of past interception activity in compiling our baseline
of historical intercept information, there may be some instances where data
was not fully collected or reported. Also, there is an amount of interception
activity associate with national security that must be accounted for in the
final capacity projections.

Fourth, during the study period (1980-1994), the number of States granting
State and local law enforcement interception authority by statute increased
and a number of States expanded interception authority to cover additional
types of crimes and/or additional types of communications devices (e.g., cellular
telephones and pagers). There is a reasonable likelihood that in the future
other States may grant similar interception authority and/or increase the
scope of existing interception authority.

Finally, law enforcement believed that judgment needed to be brought to bear
on the numbers for raw actual and maximum capacity, in terms of making appropriate
upward or downward adjustments. In particular, the FBI, acting on behalf of
the entire law enforcement community, had a responsibility to be careful not
to overstate or understate capacity needs. Importantly, however, if capacity
needs were understated it could pose direct harm to the public safety and
effective law enforcement.

Initial Capacity Notice

On October 16, 1995, the FBI published in the Federal Register its Initial
Capacity Notice. The estimates of actual and maximum capacity, expressed as
a percentage of engineered capacity, were stated as follows in the Initial
Capacity Notice:

After the FBI's publication of the Initial Capacity Notice in the Federal
Register, you requested two documents in your correspondence: (1) the historical
baseline of electronic surveillance activity, and (2) an analysis of that
activity. By way of response and clarification, although we examined past
electronic surveillance activity and utilized certain key pieces of information
derived therefrom as discussed in this letter, no ``document'', as such, was
ever created. Similarly, the factors utilized in our analysis were never compiled
into a document.

Nonetheless, because of the interest and the misunderstandings that have
been associated with this matter, we currently are in the process of preparing
two methodology documents which will explain our capacity notice efforts in
greater depth. The first document will describe the process used to collect
historical electronic surveillance information. The second document will describe
the analysis used in developing the Initial Capacity Notice, as well as the
Final Capacity Notice. Regarding the latter, it will take into account the
written comments we have received and the input from our ongoing meetings
with the telecommunications industry and other interest groups. The FBI will
provide copies of these two documents to you upon their completion.

Summary

As you are aware, in 1968 when Congress statutorily authorized court ordered
electronic surveillance, telephone technology permitted law enforcement to
execute, without impairment, essentially all court orders--a 100 percent capability/capacity
to accommodate law enforcement's court ordered electronic surveillance needs.
However, the onset of new and advanced technologies has begun to erode the
capacity and capability of the telecommunications industry to support law
enforcement's interception needs. For the first time, technological limitations
will potentially be set on law enforcement's ability to lawfully conduct electronic
surveillance. In view of these potential limitations, an attempt was made
to estimate law enforcement's capacity needs in an accurate and reasonable
manner with the goal of striking a balance of meeting law enforcement's interception
needs without introducing unduly burdensome or excessive requirements on telecommunications
carriers. This in no way changes law enforcement's fundamental statutory responsibility
to obtain proper legal authority to conduct electronic surveillance. CALEA's
capacity requirements simply ensure that, after law enforcement obtains proper
legal authority, telecommunications carriers will have sufficient capacity
to accommodate lawfully authorized electronic surveillance activity.

To project capacity needs, the previously described national methodology
was employed in order to prepare an Initial Capacity Notice for publication
in the Federal Register. Since release of the Notice, law enforcement has
met with privacy advocates, the telecommunications industry, and other interested
parties to clarify and further describe how best to apply capacity needs within
a given carrier's network, and it is reviewing and considering the formal
written comments provided in response to the Initial Capacity Notice.

In closing, CALEA is important to the public safety and national security
of this nation and its full and timely implementation is critically important
to the American public. On behalf of the law enforcement community, we would
again like to express our appreciation for your support and leadership regarding
this significant and complex issue. With the continued support of the Congress,
we are confident that CALEA will be fully implemented in an effective and
efficient manner.

Footnotes

\1\ For purposes of this discussion, the word ``interception'' refers to
all types of interceptions: (1) interceptions of communication content (e.g.,
Title III); and (2) interceptions of dialing-related information (call identifying
information) derived from pen registers and traps and traces.

\2\ 47 U.S.C. 1003 (1994).

\3\ For purposes of this discussion, the word ``lines'' refers to the transmission
path from a subscriber's terminal to the network via a wireline or wireless
medium.

\4\ Although a valuable source for historical information on criminal Title
III (call content) court orders, The Wiretap Report, published annually by
the Administrative Office of the United States Courts, does not identify the
actual number of interception lines associated with each court order or, more
importantly, with the vastly greater number of lines associated with pen register
and trap and trace interceptions that have been performed by all law enforcement
agencies. Even though the FBI used information pertaining to the number of
court orders reported in The Wiretap Report as an essential element for forecasting
purposes, the Report does not contain the line-related information that was
needed to identify the actual level of past interception activity related
to specific switches.

\5\ For purposes of this discussion, the term ``switch'' also represents
a licensed cellular service area.

\6\ 18 U.S.C. 3126 (1986). By law, the Department of Justice is required
to report to the Congress on a yearly basis information on the use of pen
registers and trap and trace devices by law enforcement agencies within the
Department of Justice. This report includes information concerning the number
of original orders, extensions, the number of investigations, the number of
persons whose telephone facilities were affected, and the number of overall
dialings.